Transparency Questions Arise Over Hickenlooper Administration’s Use of Private Emails

Emails obtained by the Independence Institute as part of a Freedom of Information Act request–and denied by a separate Colorado Open Records Act request–demonstrate a lack of public transparency and the use of unofficial, private email addresses by senior members of Gov. John Hickenlooper’s administration.

They reveal the use of multiple private email accounts to conduct official business between agencies of the state of Colorado and the Federal government.

The CORA request named Alan Salazar, Chief Strategy Officer to the Governor of state of Colorado, and Martha E. Rudolph, director of Environmental Programs for the Colorado Department of Public Health and Environment.

The records request sought “any work-related correspondence sent or received on a non-official email account (e.g., Gmail, AOL, Hotmail, etc.)” from Salazar and Rudolph for the period beginning January 2011 through November 20, 2013.

The Competitive Enterprise Institute and CEI senior fellow Chris Horner first discovered the email accounts in October 2013. Horner prepared the October FOIA and November 27, 2013 CORA requests on behalf of the Independence Institute.

According to the emails, Salazar and Jim Martin, then Region 8 director for the Environmental Protection Agency, corresponded during February 2011, at the beginning of the Hickenlooper administration and its first legislative session.

Martin wanted to discuss the Public Utilities Commission and the Regional Air Quality Council.

“Alan — any time for coffee? Would love to catch up. And would like to talk PUC and RAQC. Hope you are holding up. That building is a challenge at any time, but the first session — pure hell,” Martin wrote to Salazar on February 14, 2011.

Salazar, responding two days later, copied his deputy, Lisa Carpenter.

“Jim – who handles your schedule? I think I’ll try handling the task of getting us together with someone who knows how to do it. My deputy, Lisa Carpenter (copied here) will make it happen,” Salazar wrote.

“Alan – could do a late lunch. Or a phone call. Whatever works for you,” Martin replied.

Meanwhile, in the original response to Cooke’s CORA request, CDPHE asserted that Rudolph only used a non-official email account to receive Google Alerts.

“The department has viewed its records pertaining to the above-referenced request. The individual has Google Alerts come to a non-official email account. A sample Google Alert is attached for your review. The individual’s email address has been redacted. If you wish for the Department to produce the Google Alerts the individual has received, please submit that request to [address]… This concludes the department’s good faith effort to respond to your request,” CDPHE wrote on December 3, 2013.

Cooke followed up with a request for clarification that Rudolph’s non-official email account contained “only” Google Alerts. The response from CDPHE—“yes.”

The Independence Institute subsequently filed a letter of intent to sue the Governor’s Office and CDPHE on March 20, 2014—noting that both Rudolph and Salazar used personal email accounts to “conduct state business” in emails revealed by the FOIA request.

The notification managed to stir an additional cache of redacted emails from Rudolph’s personal account that Rudolph used at CDPHE, but not the ones revealed by the original FOIA.

In its own December 3, 2013 response to the Independence Institute, the Governor’s Office denied having access to or custodial responsibilities for Salazar’s non-official email account, which according to the FOIA, included an AOL account.

“The Governor’s Office is not the custodian of records for individual staff members regarding their personal email accounts. Nevertheless, as a courtesy, we are providing the five records that are responsive to your request on behalf of Alan Salazar,” the Governor’s Office replied.

Those additional five records revealed that in addition to Salazar’s AOL account, Salazar used and maintained a second personal email account from Gmail.

“The documented use of nonofficial email for official business appears to be an attempt to evade the transparency that the Colorado Open Records Act requires and Colorado citizens expect,” said Independence Institute attorney Geoff Blue.

Colorado does not specifically prohibit the use of personal, unofficial emails for work, and both state agencies have different email retention policies. The Governor’s Office employee manual from December 2012 recommends that employees’ “best practice is to delete all documents within thirty days after you have received or created it, unless there is an overriding reason to retain it for longer than 30 days.”

The Governor’s Office notes that office email “may be a public record under the Open Records Act and may be subject to public inspection,” and that this might also apply “in certain cases” to emails from “an employee’s personal e-mail account” as well.

The CDPHE policy manual warns that departmental email “is set to auto-delete electronic mail that is 60 days old from users’ accounts housed within the department’s email system.”

While the manual does not specifically mention personal email use, it does indicate that any “business records created and/or stored” outside CDPHE servers are subject to the requirements of the department’s records policy.

In contrast to the 30 day recommended retention policy at the Governor’s Office and the 60 day auto-delete policy at CDPHE, Cooke’s CORA covered a period of nearly three years.

Federal officials like Martin, however, fall under federal requirements and EPA written policies on personal email use and retention. The EPA maintenance and retention policy length on messages “will vary depending on the activity that the message documents.”

“Retentions range from thirty days to permanent,” according to EPA email guidelines.

“Can I use a non-EPA account to send or receive EPA e-mail?No, do not use any outside e-mail system to conduct official Agency business. If, during an emergency, you use a non-EPA e-mail system, you are responsible for ensuring that any e-mail records and attachments are saved in your office’s recordkeeping system,” the EPA wrote.

Horner’s FOIA detailed the “widespread” use of personal emails by EPA officials, despite the policy that warns against non-EPA email use.

“We are interested in EPA’s compliance with its legal obligation to maintain and preserve electronic mail correspondence relating to the performance of official business as federal records and Agency records, and its obligation to obtain and produce copies of such records when created on non-Agency accounts (a practice which the Agency’s rules also discourage but which we and congressional investigators have established is nonetheless widespread),” Horner wrote in the FOIA.

“The Governor’s office is using personal emails to do state business and avoid CORA. The problem is the public doesn’t know when the governor or his senior staff members are using private or state emails. And since they can pretty much decide what they want to keep, we will never know what they have until CORA laws are changed,” said Oliver Cooke.